Retail company significantly involved in sex-related products - publicly funded statutory employment agency's policy to not permit advertisements for personnel - policy unlawful

R (Ann Summers Ltd) v Jobcentre Plus: QBD (Mr Justice Newman): 18 June 2003

The claimant company had 72 retail outlets throughout the UK.

The defendant, an executive agency of the Department of Work and Pensions, gave notice to the claimant of a policy not to permit businesses involved, as a significant part of their business, in the manufacture, distribution, display, demonstration, promotion or sale of sex-related products, to advertise for personnel through the defendant or its associated Web site.

The claimant sought judicial review.

Kate Gallafent (instructed by Claire Posner) for the claimant; James Eadie (instructed by the Solicitor, Department of Work and Pensions) for the defendant.

Held, granting judicial review, that in reaching its decision, the defendant had lost sight of its statutory purposes and formulated its policy to ban the claimant's advertisements upon a basis which did not stand up to rational scrutiny; that it appeared to have paid no regard to the potential benefit which jobseekers could obtain from employment with the claimant and concentrated upon difficulties which might arise from those who would object to the employment; that it paid insufficient regard to its legal obligations to assist employers to fill vacancies and, while the claimant could not assert a right to have its advertisements accepted by the defendant, since Parliament had created an opportunity for all employers to have access to a publicly funded service, the service provider was bound to demonstrate a measure of flexibility and to assist an employer in the way it operated the service so as not to exclude an employer in a discriminatory manner; that the defendant had elevated the sanctioning process beyond its proper level of purpose, failing to give adequate consideration to the continued impact which vacancies externally advertised by the claimant could cause to its operation; and that, accordingly, the policy was unlawful.